CHANGING THE INSTITUTIONAL FRAMEWORK: CONSTITUTIONAL AMENDMENT

Amendments: Many Are Called, Few Are Chosen

The framers of the Constitution recognized the need for change, and they incorporated provisions for amending the document into Article V. Since 1791, when the first 10 amendments (the Bill of Rights) were added, only 17 amendments have been adopted. Two of them—Prohibition and its repeal—cancel each other out. Overall, therefore, only 15 amendments have been added since 1791, despite vast changes in American society and its economy.

Article V provides for four methods of amendment:

1. Passage in the House and Senate, each by two-thirds vote; then ratification by majority vote in the legislatures of three-fourths (now 38) of the states.
2. Passage in the House and Senate, each by two-thirds vote; then ratification by conventions called for that purpose in three-fourths of the states.
3. Passage in a national convention called by Congress in response to petitions by two-thirds (now 34) of the states; ratification by majority vote in the legislatures of three-fourths of the states.
4. Passage in a national convention, as in method 3; then ratification by conventions called for that purpose in three-fourths of the states.

Figure 2.2 illustrates each of these methods. Because no amendment has ever been proposed by national convention, however, routes 3 and 4 have never been employed. And route 2 has been used only once (for the Twenty-First Amendment, which repealed the Eighteenth Amendment, or Prohibition). Thus, route 1 has been used for all the others.

The Twenty-Seven Amendments

The Constitution and its 27 amendments are reproduced at the end of this book. All but two are concerned with the structure or composition of government. This is consistent with the definition of constitution in another sense, as the “makeup or composition of a thing.” It is also consistent with the concept of a constitution as higher law, that is, a framework within which government and the process of making ordinary laws can take place. There is great wisdom in this principle. A constitution ought to enable the passage of legislation and implementation of public policies, but it should not determine what that legislation or those policies ought to be.

The purpose of the 10 amendments in the Bill of Rights was to give each of the three branches clearer and more restricted boundaries. The First Amendment restricts the power of Congress to enact laws regulating religion, speech, the press, and assembly. Indeed, the First Amendment makes this limitation quite explicit by opening with the phrase “Congress shall make no law . . .” The Second, Third, and Fourth Amendments spell out limits that apply to both the executive branch and Congress. Though controversial today, against the backdrop of colonial history the Second Amendment—the right to bear arms—was seen as essential.

The Fifth, Sixth, Seventh, and Eighth Amendments contain some of the most important safeguards for individual citizens against the exercise of governmental power. These amendments regulate judicial proceedings and outlaw various forms of arbitrary action by agents of the executive branch. The Ninth and Tenth Amendments reinforce the idea that the Constitution creates a government of limited powers. The Ninth declares that the Constitution’s failure to mention a right does not mean it is not possessed by the people, while the Tenth states that powers not granted to the federal government are reserved to the states and the people. Table 2.3 analyzes the 10 amendments included in the Bill of Rights.

Six of the 17 amendments adopted since 1791 expand the electorate (Table 2.4). The framers could not agree on uniform qualifications defining the boundaries of the national electorate. Instead, in Article I, Section 2, they indicated that eligibility to vote in a national election would be the same as “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Article I, Section 4, added that Congress could alter state regulations as to the “Times, Places and Manner of holding Elections for Senators and Representatives,” but said nothing about voting qualifications. This meant that any important expansion of the American electorate would almost certainly require a constitutional amendment.

Six more amendments are also electoral in nature, though not concerned directly with voting rights (Table 2.5). These amendments deal with the elective offices themselves (the Twentieth, Twenty-Second, and Twenty-Fifth) or with the relationships between elective offices and the electorate (the Twelfth, Fourteenth, and Seventeenth).

Another five amendments have expanded or limited the powers of the national and state governments (Table 2.6).³⁴ The Eleventh Amendment protects the states from suits by private individuals and denies the federal courts any power to hear suits by private individuals of one state (or a foreign country) against another state. Three other amendments presented in Table 2.6 reduce state power (the Thirteenth), reduce state power and expand national power (the Fourteenth), and expand national power (the Sixteenth). The Twenty-Seventh limits Congress’s ability to raise its members’ salary. The Thirteenth, which abolished slavery, restricted the states’ power by forever forbidding them to treat any human being as property. The Sixteenth Amendment expanded the federal government’s power by allowing it the ability to levy an income tax.

Two peculiar amendments had very narrow and specific purposes: the Eighteenth Amendment, prohibiting the manufacture, transport, and sale of alcoholic beverages, and the Twenty-First Amendment, which repealed that prohibition. The Eighteenth Amendment was an unsuccessful attempt to address a substantive social problem and became the only amendment ever to have been repealed.

For those whose hopes for change center on the Constitution, it must be emphasized that the amendment route to social change is, and always will be, extremely limited. This is “path dependency,” as captured in the history principle, with a vengeance. The status quo—the original Constitution—and the arduousness of its amendment process provide durability, on the one hand, and constrain the prospects for change, on the other. Through a constitution it is possible to establish a working structure of government, and through a constitution it is possible to establish basic rights of citizens by placing limitations and obligations on that government’s powers.

No written constitution can or should prevent political change. We see change every year: at the ballot box, in congressional rules, in the form of new legislation, and so forth. The purpose of a constitution is to maintain boundaries, to protect the rule of law, to ensure the stability without which no economy can function, and to assure citizens that change will not take away their rights and liberties.